Government “Appeals” Judge Orenstein’s Ruling

The U.S. Attorney for the Eastern District of New York (that’s Brooklyn, for everyone in the rest of the world) has filed an “appeal” of Magistrate Judge James Orenstein’s order denying its motion to compel Apple to develop software to bypass the security measures built into iOS to withstand a brute force attack. Why is “appeal” in quotes you ask? Because that isn’t the proper term for the procedure; the government did not file a “notice of appeal,” which is ordinarily the first step taken to appeal a lower court’s ruling.

What is really happening with this case is, the government is asking a district court judge (in the same court) to toss Judge Orenstein’s ruling, including the underlying reasoning, and then re-decide the case in the government’s favor. This is the federal court practice equivalent of a kid asking his dad if he can watch an R-rated movie after his mom just told him he couldn’t. The procedure is available because the decision was entered a magistrate judge, rather than a district judge (all district judges are nominated by POTUS, and confirmed by the senate; magistrate judges are appointed by the court for a limited term, and do not have life tenure). The government’s memorandum of law is here, with all the exhibits:

About Joe

Before I became an attorney, I played the saxophone for a living. Over the years, I played with the likes of Grammy-award winners Ray Charles, The Four Tops, and Tom Harrell. I lived in Brooklyn, Manhattan, eventually New Jersey, and oftentimes out of a suitcase. I made the decision to go back to law school, because I felt like I had an incredibly unique perspective to offer to my clients.

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